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In international arbitration, deference entails that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor. For example, a court exercising post-award review might refrain from reviewing a question of procedure de novo but instead defer to a prior determination made by the arbitral tribunal. In this book, prominent arbitration practitioners and academics offer the first systematic analysis of such deference in international arbitration. With abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise: public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution); public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution). The book makes an important contribution to tracing the boundaries of the multiple layers of control over arbitration proceedings. It takes a giant step towards establishing the right equilibrium between the different layers of authority and thus meeting a pivotal challenge for the viability of arbitration as a form of dispute resolution.
The absence of a coherent body of case law on due process has increasingly motivated recalcitrant parties to use due process as a strategic tool, thereby putting at risk the prospect of obtaining an enforceable award in expeditious proceedings. Countering this inherent danger, here for the first time is a comprehensive study on due process as a limit to arbitral discretion, showing how due process applies in practice in key jurisdictions around the world. Based on country reports prepared by leading arbitration practitioners and academics, the book explores how courts in major arbitration jurisdictions apply due process guarantees when performing their post-award review. The contributors, driven by an interest in exploring the interplay between due process and efficiency, focus on those due process guarantees that set limits to arbitral discretion. Matters covered include the following: the right to be heard and how it may be affected by submission deadlines, evidentiary offers by the opposing party, and directions to the parties as to which aspects require further pleading; the right to be treated equally and its interplay with the duty to give each party full opportunity to present its case and to comment on submissions and evidence filed by the other party; the duty to effect proper notice, including delivery and language issues; the independence and impartiality of arbitrators with a focus on when an arbitrator’s conduct can become the basis for a successful challenge; and courts’ standards of deference when examining issues arising at the post-award stage. An introductory general report thoroughly analyses the normative basis of due process and its interplay with party autonomy, as well as applicable standards of review and commonalities among manifestations of due process across jurisdictions. A signal contribution to the debate regarding the so-called due process paranoia affecting arbitral tribunals – a topic relevant in every single arbitration proceeding – this book provides practical guidelines on how to maintain the balance between due process and efficiency and how to apply due process and counteract its misuse in arbitration proceedings. It will be welcomed by counsel, arbitrators, and judges from all countries, as well as by academics and researchers concerned with international commercial arbitration.
"Introduction Deference and the International Adjudication of Private Property Disputes While working as a government lawyer in 2011, a letter came into our office advising that the Philip Morris tobacco company had decided to sue Australia under a bilateral investment treaty. The company contended that Australia's tobacco plain packaging requirements breached its intellectual property rights, entitling it to billions of dollars in compensation under international law. This news was not particularly shocking to the small team of which I was part, which had been assembled within the government's Office of International Law to respond to these types of claims. The news was shocking, though, to the wider Australian community. Over the ensuing months, the community's disbelief became better-articulated in the press: How can an international tribunal sit in judgment over a measure which the Australian Parliament had decided was in the public interest after extensive scientific enquiry and public consultation? Could an international tribunal really reverse the finding of Australia's highest court that the legislation was lawful?"--
International Commercial Arbitration contains detailed commentary, case analyses, and practice pointers. Full annotations and footnotes provide invaluable research assistance, while clearly-written analyses identify and discuss critical issues. Representative international arbitral awards and national court decisions are excerpted, and detailed reference is made to leading institutional rules. Detailed appendices, an easy-to-use Table of Contents, and an extensive index to aid research and provide ready access to key materials. Co-publication with Kluwer Law International. North American sales rights only. Published under the Transnational Publishers imprint. For class adoption a student edition is available for
After neutrality and international enforcement, the next most valued feature of international commercial arbitration is confidentiality. For reasons easy to imagine, businessmen do not want their trade secrets, business plans, strategies, contracts, financial results or any other types of business information to be publicly accessible, as would commonly happen in court proceedings. Yet the case law of arbitration shows that in practical terms confidentiality is not to be taken for granted - in fact, it has become one of the most undetermined matters in international arbitration. Although 'the emperor of arbitration may have clothes, ' as one scholar has quipped, his raiments of secrecy can be 'torn with surprising ease'. This book deciphers the current degree of confidentiality in international commercial arbitration as reflected by the most important arbitration rules, national laws, other arbitration-related enactments, and practices of arbitral tribunals and domestic courts globally. Drawing on this data and analysis, the author then sets forth criteria to assess the breach of confidentiality in international arbitration and the proper rules for protecting or sanctioning such breaches. What do we understand by confidentiality in arbitration? What are its limitations? Who is bound to observe it? How can we quantify its breach? In addressing these questions, the book engages such issues as the following: reasons for disclosure - e.g., for the establishment of a defence, for the enforcement of rights, in the public interest or in the interests of justice disclosure by consent, express or implied; circumstances triggering statutory obligation of disclosure; recent trends towards greater transparency in investor-State arbitration; court measures in support of arbitral confidentiality such as award of damages for breach of confidentiality; and categories of persons bound by confidentiality, including third parties such as witnesses and experts. Structured along the main stages of the arbitral process, the analysis covers the duty of confidentiality from the initiation of arbitral proceedings through their unfolding to the issuance of the award and after. The scope of confidentiality is reviewed in the practice of arbitral tribunals and domestic courts, and from the perspective of international arbitration institutions, with detailed attention to various arbitration rules and numerous significant cases. In its elucidation of the amount of confidentiality that 'veils' each phase of the arbitral process, and its ground-breaking identification of 'patterns of disclosure', this book is sure to raise awareness about the various facets and problems posed by confidentiality in arbitration. Although its scholarly contribution to the law of international commercial arbitration cannot be gainsaid, corporate counsel worldwide will quickly prize its more practical value.
New York is a leading venue for international commercial arbitration, home to the headquarters for the International Centre for Dispute Resolution, the international branch of the American Arbitration Association, and many leaders in the international arbitration field. New York also serves as the locus of several prominent arbitration firms' central offices. International Commercial Arbitration in New York focuses on the distinctive aspects of international arbitration in New York. Serving as an essential strategic guide, this book allows practitioners to represent clients more effectively in cases where New York is implicated as either the place of arbitration or evidence or assets are located in New York. This collaborative work boasts contributors of pre-eminent stature in the arbitration field. Each chapter elucidates a vital topic, including the existing New York legal landscape, drafting considerations for clauses designating New York as the place of arbitration, and material and advice on selecting arbitrators. The book also covers a series of topics at the intersection of arbitral process and the New York courts, including jurisdiction, enforcing arbitration agreements, and obtaining preliminary relief and discovery. Class action arbitration, challenging and enforcing arbitral awards, and biographical materials on New York-based international arbitrators is also included, making this a comprehensive, valuable resource for practitioners. This new in paperback edition provides a Preface prepared by the editors that briefly discusses several developments in the field of arbitration in New York since the publication of the hardback version in 2010. It also contains in Appendix 6.1, the International Chamber of Commerce ("ICC") Rules of Arbitration (In force as from January 1, 2012).
This book analyses how arbitrators make rules that guide, constrain, and define the process and substance of international arbitration. Providing a thorough and multidisciplinary analysis of the actors, process, and outcome of arbitral lawmaking, the study shows how arbitrators create principles of law through consistent arbitral decision-making and through interacting with other members of the arbitral community. This book investigates and responds to the following questions: - What is the relationship between international arbitration and the law and courts of the seat? - What is the role of international tribunals in assisting and controlling investment arbitration? - What is the scope of arbitrators’ freedom in decision-making? - What constraints limit arbitrators’ decision-making and contribute to consistency? - Is international arbitration capable of paying deference to past arbitral decisions? - Which rules have arbitrators created in procedural and substantive matters? - What is the role and status of consistent arbitral decisions? - Is there an arbitral legal system? The answers to these questions are drawn from actual arbitral decisions made available to the public, clarifying important issues about jurisdiction, procedure, applicable law, interpretation of substantive rules and instruments, and remedies. This is the first overarching study of whether and to what extent international commercial, and investment arbitrators create norms and even generate a legal system. As such, it will be of immeasurable and lasting value to arbitrators, practitioners, scholars, arbitral institutions, and international organizations worldwide, for all of whom it will not only clarify our understanding of arbitral decision-making and arbitrator-made rules, but also foster transparency and accountability in arbitral decision-making
Judicial review of investor-state arbitral awards is often performed by domestic courts that are unfamiliar with issues of treaty interpretation and international law. According to international law, the grounds for review of international arbitral awards are in theory quite narrow. Nevertheless, a review of three decisions from Canadian courts suggests that Canadian domestic courts have construed the grounds for review broadly enough to allow them to review the merits of international arbitral awards. In general, domestic courts may not be well-equipped to grapple with international arbitral awards. These courts often view their role as that of supervising international tribunals in the way that they supervise domestic tribunals. This article argues that domestic courts should primarily act as enforcers of international arbitral awards, interfering only in cases of egregious error. This high level of deference will encourage international commercial activity, further the harmonization of international arbitration laws, and provide for greater certainty in international business transactions.
This indispensable book offers a concise comparative introduction to international commercial arbitration (ICA). With reference to recent case law from leading jurisdictions and up-to-date rules revisions, International Commercial Arbitration offers a thorough overview of the issues raised in arbitration, from the time of drafting of the arbitration clause to the rendering of the arbitral award and the post-award stage.